Les Mareyeurs, Inc.

794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Les Mareyeurs, Inc. and Local 22, Chefs, Cooks, Caf- eteria Food, Beverage and Service Employees Union, affiliated with the Hotel and Restaurant Em- ployees and Bartenders International Union, AFL- CIO. Case 2-CA-14096 July 30, 1976 DECISION AND ORDER By MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge and a first amended charge filed on February 2 and 12, 1976, respectively, by Local 22, Chefs, Cooks, Cafeteria Food, Beverage and Service Employees Union, affiliated with the Hotel and Res- taurant Employees and Bartenders International Union, AFL-CIO, herein called the Union, and duly served on Les Mareyeurs, Inc., herein called the Re- spondent, the General Counsel of the National La- bor Relations Board, by the Regional Director for Region 2, issued a complaint and notice of hearing on March 12, 1976, against the Respondent, alleging that the Respondent had engaged and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charges, complaint, and no- tice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges, in substance, that (1) on or about De- cember 1, 1975, Respondent interrogated its employ- ees concerning their membership in, activities on behalf of, and sympathy for the Union; and (2) be- ginning on or about December 2, 1975, and continu- ing until his termination on January 16, 1976, Re- spondent provided employee Jean Oczkowski, with less employment than he had previously received and than he normally would have received, and reduced his rate of pay and paid him wages at the reduced rate because he had joined, assisted, and signed an authorization card for the Union and had engaged in other concerted activity. Respondent failed to file an answer to the complaint. On May 20, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment and Issuance of Decision and Order and a Petition for Summary Judgment and Decision and Order, with exhibits attached. Subsequently, on June 2, 1976, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's motion should not be granted. The Respondent did not file a response to the notice so that the allegations of the Motion for Summary Judgment stand uncontroverted. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions provides: The respondent shall, within 10 days from the service of the complaint, file an answer thereto. The respondent shall specifically admit, deny, or explain each of the facts alleged in the com- plaint, unless the respondent is without knowl- edge, in which case the respondent shall so state, such statement operating as a denial. All allega- tions in the complaint, if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be ad- mitted to be true and shall be so found by the Board, unless good cause to the contrary is shown. The complaint and notice of hearing issued and served on or about March 12, 1976, on the Respon- dent specifically states that unless an answer to the complaint is filed within 10 days of service thereof "all of the allegations in the complaint shall be deemed to be admitted by it to be true and may be so found by the Board." Further, according to the un- controverted allegations of the Motion for Summary Judgment, counsel for the General Counsel, on May 5, 1976, by registered mail and in a personal conver- sation with the Respondent's president, informed the Respondent that no answer to the complaint had been received and if no answer was received by the close of business on May 14, 1976, a Motion for Summary Judgment would be filed. As of May 20, 1976, the date the Motion for Summary Judgment was issued, no answer had been filed. In view of the Respondent's failure to answer, un- der the rule set forth above and no good cause hav- ing been shown for such failure, the allegations of the complaint are deemed to be admitted and are found to be true. Accordingly, we shall grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: 225 NLRB No. 107 LES MAREYEURS, INC. 795 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT At all times material, Respondent, a New York corporation, has operated a restaurant at 998 Madi- son Avenue, in the city and State of New York where it is and has been continuously engaged in the prepa- ration, sale, and distribution of food, beverages, and related products. During the past year, a representa- tive annual period, the Respondent derived from the restaurant gross revenues in excess of $500,000 and purchased and caused to be delivered to its restau- rant foodstuffs, wines and liquors, and other goods and materials valued in excess of $50,000, of which goods valued in excess of $50,000 were transported and delivered to its restaurant directly from States other than New York. We find, on the basis of the foregoing, that the Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED Local 22, Chefs, Cooks, Cafeteria Food, Beverage and Service Employees Union, affiliated with the Hotel and Restaurant Employees and Bartenders In- ternational Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Independent 8(a)(1) Violations On or about December 1, 1975, Respondent inter- rogated its employees concerning their membership in, activities on behalf of, and sympathy for the Union. Accordingly, we find that by the aforesaid conduct Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them under Section 7 of the Act and, by such conduct, Respondent has engaged in unfair la- bor practices within the meaning of Section 8(a)(1) of the Act. B. The 8(a)(3) and (1) Violations Commencing on or about December 2, 1975, until his termination on January 16, 1976, Respondent provided employee Jean Oczkowski with less em- ployment than he previously had received and than he normally would have received, and reduced his rate of pay and paid him wages at the reduced rate because he had joined, assisted, and signed an au- thorization card for the Union and had engaged in other concerted activity for the purpose of collective bargaining and mutual aid and protection. Accordingly, we find that by the aforesaid conduct the Respondent discriminated in regard to the terms and conditions of employment of its employees, thereby discouraging membership in a labor organi- zation and that, by such conduct, the Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(3) and (1) of the Act, we shall order that it cease and desist therefrom, and that it take certain affirmative action as set forth below de- signed to effectuate the purposes and policies of the Act. Having found that the Respondent violated Sec- tion 8(a)(3) and (1) of the Act by discriminatorily reducing the amount of employment and the rate of pay employee Jean Oczkowski normally would have received from December 2, 1975, to January 16, 1976, when he was terminated, we shall order the Respondent to make Jean Oczkowski whole for the loss of earnings suffered as a result of the Respondent's discriminatory reduction of the amount of his employment and of his rate of pay between December 2, 1975, and January 16, 1976, by paying him the difference between what he would have normally earned during that period absent dis- crimination and what he was paid during that period with interest thereon. Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The Board, upon the basis of the foregoing facts and the entire record, makes the following: 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Les Mareyeurs, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 22, Chefs, Cooks, Cafeteria Food, Bever- age and Service Employees Union, affiliated with the Hotel and Restaurant Employees and Bartenders In- ternational Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the acts described in section III, A, above, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guar- anteed in Section 7 of the Act and has thereby en- gaged in, and is thereby engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By the acts described in section III, B, above, Respondent has discriminated, and is discriminating, in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization and has thereby engaged in, and is thereby engaging in, unfair labor practices within the meaning of Sec- tion 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Les Mareyeurs, Inc., New York, New York, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their membership in, activities on behalf of, and sympathy for Local 22, Chefs, Cooks, Cafeteria Food, Beverage and Service Employees Union, affiliated with the Hotel and Restaurant Employees and Bartenders In- ternational Union, AFL-CIO, or any other labor or- ganization. (b) Discouraging membership in the above-de- scribed Union, or any other labor organization, by discriminatorily reducing the amount of employees' employment and their rates of pay, or by otherwise discriminating in regard to hire or tenure of employ- ment or any term and condition of their employ- ment. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make Jean Oczkowski whole for any loss of pay suffered as a result of the Respondent's reduc- tion in his employment and rate of pay in the manner set forth above under the section entitled "The Rem- edy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its restaurant in New York City copies of the attached notice marked "Appendix." I Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 1 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees concern- ing their membership in, activities on behalf of, and sympathy for Local 22, Chefs, Cooks, Cafe- teria Food, Beverage and Service Employees Union, affiliated with the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, or any other labor organization. WE WILL NOT discourage membership in the above-described Union, or any other labor orga- nization, by discriminatorily reducing the amount of our employees' employment and their rates of pay, or by otherwise discriminating LES MAREYEURS, INC. 797 in regard to hire or tenure of employment or any WE WILL make Jean Oczkowski whole for any term and condition of their employment. loss of pay suffered as a result of our reduction WE WILL NOT in any other manner interfere in his employment and rate of pay with interest with, restrain, or coerce our employees in the at 6 percent per annum. exercise of the rights guaranteed them in Section 7 of the Act. LES MAREYEURS, INC.